The Paxton v. Netchoice Stay Application As an Example of Clever Lawyering and Bad Procedure
Paxton v. Netchoice is a court case on the constitutionality of a 2021 Texas state law (“the statute”) that would require large internet platforms in Texas (a) to disclose their procedures for prioritizing what posts users see, and (b) not to discriminate against users based on political stance. Thus, it would forbid Twitter from kicking off The Babylon Bee because it was an anti-Establishment, Christian, humor site. The Lords of Tech formed a consortium called Netchoice to fight laws like this. They argue that this law is “compelled speech”, because it forces them to host users who print political views they disagree with, and since Facebook, Twitter, etc. are owned by private companies, they have every right to discriminate based on political viewpoint.
The case is EXTREMELY important, and has seen some clever lawyering this past 10 days. This article is not about the merits, who should win and who should lose, but about the clever lawyering. As one might expect, the Lords of Tech have a bigger budget than the Texas Solicitor-General, so the clever lawyering is coming from them. It is sneaky, but fair, under current rules. One purpose of me writing this is to suggest that the rules be changed, just as when billionaires take sneaky but fair advantage of tax loopholes we try to change the tax rules that they cleverly saw. I am writing this rapidly, since it is so topical. Please let me know in the comments if I make mistakes, and I will fix them.
Here is what happened. Texas passed the statute. Netchoice immediately went to federal District Court to block the statute as unconstitutional. Netchoice won, and the District Court Judge issued a preliminary injunction to stop the statute from going into effect.
Texas appealed to a three-judge panel of the 5th Circuit appeals court. The case is called Paxton v. Netchoice because Texas is there in the person of its Attorney-General, Mr. Paxton. The 5th Circuit has not yet issued its decision, but it is expected to very soon. The 5th Circuit refused Texas’s request to “stay” the preliminary injunction and let the statute go into effect while it heard the case. The briefs were submitted and eeryone though that the judges might well rule in favor of Texas based on who the judges are and the questions they asked at oral argument the day when the lawyers argued live in front of the court.
The 5th Circuit granted the stay, however, on May 11, which meant the statute could go into effect immediately. The 5th Circuit would not have done this unless there was a very good chance its 3-judge panel would rule in favor of Texas.
Now comes the clever lawyering. Take a look at the Supreme Court docket. It starts with:
May 13 2022 Application (21A720) to vacate the stay, submitted to Justice Alito.
On May 13, Netchoice asked the Supreme Court to lift the stay, and put the preliminary injunction back into effect so the statute would again be blocked. The brief is by some very good, very expensive, lawyers, with Paul Clement of Kirkland & Ellis at the top of the list.
The next item on the docket is:
May 14 2022 Response to application (21A720) requested by Justice Alito, due by 5 p.m. (EDT) May 18, 2022.
Each Circuit has a Supreme Court Justice who can decide on Stay requests from that area of the country. Justice Alito has the 5th Circuit. He can issue a stay himself, or bring it before the other 8 Justices of the Supreme Court. His response here was to ask Texas to respond to Netchoice’s request brief within 5 days, by May 18. It doesn’t say it on the docket, but Netchoice would then have 1 day to answer Texas’s counterarguments against its request for a stay. Thus we get:
May 18 2022 Response to application from respondent Ken Paxton, Attorney General of Texas filed.
May 19 2022 Reply in support of emergency application filed.
Why is this clever lawyering?
First, the Stay is important because it effectively decides the case temporarily for the year or so before the Supreme Court gets to it. In particular, that means the Tech Lords can skate safely past the midterm Congressional elections with a continued ability to censor Republicans and Republican-favorable news stories as they did with Russiagate and the multiple Hunter Biden scandals, in Texas, at least.
Second, Texas only has five days to respond. The Texas Attorney-General’s Office is a busy place, with all of its attorneys assigned to lots of cases. This doesn’t give them much time to hire outside counsel. Also, with due respect, the Tech Lords have billions of dollars to hire the most skillful lawyers in America, and the Texas Attorney-General’s office doesn’t.
Third, Texas is caught flat-footed. It didn’t know Netchoice was gong to ask for a Stay before the 5th Circuit issued its opinion. So it wasn’t even geared up for a five day period of intense work.
When I saw the Texas brief on May 18, I read it rapidly and found what looked to me like two important omissions and one important mistake, all of which Texas could have fixed easily had it noticed them. I’ll say what those three errors were at the end of this article. For now, note that this is what happens with tight deadlines. Stuff gets missed. When lawyers pull all-nighters, they don’t do their best work.
Amicus Briefs
This brings us to my second big topic: amicus briefs. Ordinarily the way courts operate is that each side files its brief, and then third parties, amici, “friends of the court”, can file briefs. The court doesn’t have to accept or read or respond to these briefs, but if they provide legal points the two adversaries have missed (or skipped over intentionally because neither side likes the point), they can be very useful to the court.
Here, this being an emergency stay application, the process was short-circuited. Instead, amici had just five days to file, and couldn’t see Texas’s brief before they did so. This flies contrary to how amicus briefs are supposed to work. Amici aren’t supposed to just repeat arguments the parties make, because that’s a waste of the Court’s time. They’re supposed to come up with points the parties neglected. But how can they do that if one of the parties hasn’t even submitted his brief yet? They’re also supposed to help even the playing field when one side is richer and has better lawyers—the amici can fill in points that the poor side didn’t notice were in its favor. As we see here, Texas made three mistakes (or at least so I claim), but amici couldn’t help fix them.
Thus, I hope courts change this procedure and allow amici two days to respond to the respondent’s brief, with the movant getting an additional day after that to respond to both respondent and amici.
But there is more to say about amicus briefs.
The briefs on both sides argue the merits heavily, rather than whether a stay is justified on any other ground (e.g. irreparable harm). Thus, this kind of maneovre is called an appeal to the "shadow docket": it's a shadow way to argue the merits. Whether Netchoice is granted its stay is based partly on whether the court thinks it is likely to win on the merits, but that is not the most important consideration— in theory at least— and certainly not the only one. The law varies somewhat from circuit to circuit and country to country, but I think there are four standard considerations, plus one that’s special for the Supreme Court.
(1) Likelihood of winning on the merits. If based on what they see now, the Court thinks Netchoice likely to win the case once it is argued, that goes in favor of Netchoice getting the stay.
(2) Irreparable harm. Even if the court thinks it 99% likely Netchoice will win after the case is argued, if it can’t show that lack of a stay would irreparably harm it, it loses. Showing monetary loss is not enough, because if Netchoice wins, Texas will have to pay for the extra damage during the year the case was being decided.
(3) Balancing the equities. Even if Netchoice would suffer irreparable harm if the stay is not granted, maybe Texas would suffer irreparable harm if it *is not* granted. The court has do think about the relative size of the irreparable harm.
(4) The public interest. The Court should think about the public interest, as well as the private interest of the parties. The public might suffer irreparable harm too.
(5) Chance the Supreme Court will take the case. This one is special to the Supreme Court. Even if the Court thinks Netchoice would win on all 4 other criteria, if it doesn’t think the Court will have room to listen to the arguments and decide on the merits, it should deny the stay. The stay, after all, is only supposed to be a temporary measure until the Supreme Court decides the case, but the Supreme Court rejects the applications of almost everyone who wants it to hear a case.
I haven’t looked at most of the amicus briefs, but I bet they all repeat arguments on the merits, criterion (1). That’s what Netchoice and Texas both do for 90% of their briefs.
It looks like Netchoice is using classic "lobbying by amicus names". Friends of the court are supposed to be independent outside experts, not subsidiaries of the parties. There is a rule that they must disclose if they are financed by the parties, but not if they are just advised or urged or if the parties make big annual contributions to their nonprofit organizations. Here, the amici on the side of Netchoice are, showing the groups that submitted a brief together,
Christopher Cox
Reporters Committee for Freedom of the Press et al.
Professor Eric Goldman
Floor64, Inc. d/b/a the Copia Institute s
Center for Democracy & Technology, Electronic Frontier Foundation, National Coaliton Against Censorship, R Street Institute, Wikimedia Foundation, and Woodhull Freedom Foundation
TechFreedom
Chamber of Progress et al. of Chamber of Progress, Anti-Defamation League, Connected Commerce Council, Consumer Technology Association, Engine Advocacy, Family Online Safety Institute, HONR Network, Information Technology & Innovation Foundation, Interactive Advertising Bureau, IP Justice, LGBT Tech Institute, Multicultural Media, National Association for the Advancement of Colored People, National Hispanic Media Coalition, Our Vote Texas, Software & Information Industry Association, Stop Child Predators, TechNet, Telecom and Internet Council, Texas State Conference of the NAACP, and Washington Center for Technology Policy Inclusion
Cato Institute
And here are the amici on Texas’s side:
Professor Philip Hamburger; Giganews Inc.; Golden Frog, GmBH
State of Florida
Why did Netchoice have 20 or 30 and Texas only had 2 amici? Another clever thing about the Netchoice ploy is that Netchoice could prime its amici, and had the staff to respond quickly to the removal of the preliminary injunction (and perhaps even write some of the briefs). Texas had five days to coordinate amici, if it wanted to.
The list also illustrates Lobbying by Amicus Name. It makes it looks like Jews, blacks, Hispanics, LGBTQ, consumers, and Wikipedia is on Netchoice’s side, while Texas only has child predators and golden frogs. How many of these amici are genuine organizations is unclear. Most of them I’ve never heard of, and they might well be names created for the occasion.
Lobbying by Amicus Name shouldn’t work, but I’m afraid it probably does. A Supreme Court Justice too old to think clearly can at least figure out from the amici which side he’s supposed to be on in a complicated case, as a matter of pure power politics. Maybe we should change the rules to make amici all anonymous.
Flaws in Texas’s Stay Brief and Its Tactics
I will now add a coda to the article. What follows gets into the nitty gritty of the procedural tactics, and will be of less general interest. It is advice I would have given Texas if I’d been following more closely.
(1) Why the Babylon Bee hasn’t sued Twitter already I don’t know. The preliminary injunction only applied to the State of Texas, not to private parties. The statute allows private parties to sue platforms that discriminate against them. It would have helped Texas’s case against the stay, and still will, if someone files suit against Twitter, because one argument is that the stay is useless because the preliminary injunction doesn’t help Twitter and Netchoice much anyway because private parties can file suit even if the Attorney General cannot.
(2) In its Stay brief, Texas is relying on Coleman, a case Netchoice does not even cite (see https://netchoice.org/wp-content/uploads/2022/05/Supreme-Court-Vacatur-Application17.pdf). I haven't sorted out the conflicting criteria, but I would think Netchoice must be right in the case it choose to cite instead. The Coleman case talks about the special criterion (5) above, but neglects the standard (4)— think it just uses two of them. And Texas didn’t even come to grips with Netchoice’s different set of criteria.
(3) The Texas brief does say at length why Netchoice won't be hurt much if the stay is denied— criterion (2), Irreparable Harm. That’s a mistake, since Netchoice will face some irreparable harm. It would have been better just to argue that the criterion is satisfied, but the harm is small, and move on to criterion (3), Balancing the Equities.
But Texas doesn't say that Texas will suffer irreparable harm if the stay is granted! "Not much" beats "zero". What Texas should have said was that with lots of public controversy about Ukrainia, abortion, and the midterm elections, letting big Tech censor their platforms until the Supreme Court gets around to deciding whether to grant cert in a year or so would be irreparably harmful. Texas could have pointed to the suppression of the Biden laptop story, and to misinformational censorship about covid that has killed lots of people.
(4) Texas should have reminded the Supreme Court that criterion (1), Likelihood of Winning on the Merits, is just one criterion and not the most important, even though it seems briefs always spend almost all their energy on it. That’s especially important in this case because Texas is weaker on criterion (1) than on (3) and (4), where it is very strong. So don’t spend 90% of the brief on criterion (1).
(5) Texas ignored not just Balancing the Equities (criterion (3)), but Public Interest (4). Public Interest gets technical, and needs looking at the caselaw, which I haven’t done, because it is a Term of Art. The question there is how the Court decides what is the public interest. I think the usual meaning is what government policy is, since the elected government represents the public. Here, Texas gets to say what the public interest is, in Texas at least. Also, Texas could talk about the millions of social media users who would be hurt by the stay. But they said zero. Fortunately, the State of Florida amicus brief does talk about the public interest a lot, though not referencing it as a Stay criterion. Despite not being able to see that Texas missed that point, Florida knew it was important, so they put it in their brief.
That’s all from me. For convenience, though, I’ve put the parts of the Netchoice and Texas briefs below.
NETCHOICE: Second, the irreparable harm to Applicants’ members by permitting HB20’s enforcement far outweighs any harm to the Defendant from an injunction. Nken, 556 U.S. at 434. Texas lacks a sufficient interest for HB20 (see supra pp.32-33), so the State will not be harmed if this unconstitutional law is enjoined.
Finally, allowing Applicants’ members to exercise their First Amendment rights as they have for years is in thepublic interest.Elrod, 427 U.S. at 373; Nken, 556 U.S. at 434. The platforms’ continued editorial control over their own websites will benefit users and the public more broadly. App.35a. And continued editorial control reflects Congress’s judgment that platforms (like all other websites) should have “[p]rotection for private blocking and screening of offensive material.” 47 U.S.C. § 230. Vacating the Fifth Circuit’s stay will ensure an Internet “with a minimum of government regulation”—as both Congress and the Constitution demand. Id. § 230(a)(4). Moreover, as addressed above at pp.2-3, 14-17,the public-interest factorweighs heavily in favor of preserving the status quo while both the Fifth and Eleventh Circuits consider Applicants’ First Amendment claims in the normal course.b that HB20’s violations of platforms’ rights will furtherthe public interest,that argument inverts the First Amendment’s protections. The First Amendment is not a sword the government may wield against disfavored speakers. It is a shield that private entities may use to protect against governmentcompelled speech. HB20 targets disfavored private entities for making editorial choices. A country permitting such a law is the real “discriminatory dystopia” that Defendant accuses private companies of promoting. Def. Br. at 4. Allowing such a gross invasion here will only facilitate further government control of private speech. 42 That, assuredly, is not in thepublic interest. Accordingly,all the factorsjustify granting the Application and maintaining the status quo.
TEXAS: To justify such relief and the attendant disruption of the orderly appellate process, an applicant must make a threefold showing. First, the applicant must show that the case “could and very likely would be reviewed” in this Court “upon final disposition in the court of appeals.” Coleman, 424 U.S. at 1304. Second, the applicant must show that the lower court was “demonstrably wrong in its application of accepted standards in deciding to issue the stay.” Id. Third, the applicant must show that his rights “may be seriously and irreparably injured by the stay.” Id. And this Court is especially reluctant to vacate a lower court’s stay when, as here, the court of appeals expedites its consideration of the stayed order. Doe, 546 U.S. at 1309.